SECOND DIVISION

[G.R. No. 197613. November 22, 2017.]

PUBLIC ATTORNEY'S OFFICE, petitioner, v s . OFFICE OF THE

OMBUDSMAN and ATTY. TERENCIA S. ERNI-RIVERA ,
respondents.

DECISION

CAGUIOA, J : p

The Case
This is a Petition for Certiorari 1 (Petition) filed under Rule 65 of the
Rules of Court which seeks to annul the Resolution 2 (Assailed Resolution)
dated September 1, 2010 and Order 3 (Assailed Order) dated November 30,
2010 issued by the Office of the Ombudsman (Ombudsman) in OMB: C-C08-
0419-I.
The Assailed Resolution and Order dismissed, for lack of probable
cause, the separate criminal complaints (Criminal Complaints) filed against
Atty. Terencia S. Erni-Rivera (Atty. Rivera) for violation of the following:
(i) Â Section 7 (b) (2) and (d) 4 of Republic Act No. (RA) 6713, 5
which prohibits public officers from engaging in the private
practice of their profession while in the public service;
(ii) Â Section 3 (e) 6 of RA 3019 7 as amended, which prohibits public
officers from causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence; and
(iii) Â Article 171 (4) 8 of Act No. 3815, otherwise known as the
Revised Penal Code (RPC), which treats the crime of falsification
by a public officer.
The Facts
Atty. Rivera is a Career Service Employee who joined the government
service on July 18, 1978 as Trial Attorney II. 9 Since then, Atty. Rivera had
been promoted to several permanent positions, until she was appointed to
the position of Public Attorney V (PA5) for PAO Regional Office No. III by
virtue of a presidential appointment dated March 8, 2004. 10 HDICSa

Violation of RA 3019 (causing undue

injury and/or giving unwarranted
benefits/advantage to private parties)
and RA 6713 (engaging in private
practice)
After Atty. Rivera assumed her duties as PA5, PAO received a Letter
and Affidavit dated August 13, 2004 and August 17, 2004, respectively, both
by a certain Hazel F. Magabo (Magabo). 11 Magabo alleged that contrary to
PAO's internal rules, Atty. Rivera agreed to handle the annulment
case sought to be filed by her brother Isidro Fayloga (Fayloga), and
received staggered payments therefor in the total amount of
Ninety-Three Thousand Pesos (P93,000.00) . 12 Such amount consists of
money sent by Fayloga from abroad, as well as money personally advanced
by Magabo upon Atty. Rivera's promise that these advances would expedite
Fayloga's annulment. 13 However, Magabo later discovered that Atty. Rivera
did not file any petition on Fayloga's behalf. 14
To support her claims, Magabo presented copies of bank slips showing
that she made several deposits in varying amounts to Atty. Rivera's account.
Magabo also presented a summary of payments showing that Atty. Rivera
and her secretary also received cash on different dates. 15
In response, Atty. Rivera averred that while she did receive the amount
of Ninety-Three Thousand Pesos (P93,000.00) as alleged, such amount was
merely entrusted to her. Atty. Rivera explained that Magabo, her longtime
friend, asked for her help in finding a private practitioner to take on
Fayloga's case, and that the money she received was meant to cover the
professional fees and litigation expenses that would be incurred in this
connection. 16 Atty. Rivera further averred that she returned the money
entrusted to her as soon as it became apparent that Fayloga would no
longer return to the Philippines to pursue the annulment case. 17
As Atty. Rivera subsequently assumed the position of Regional Public
Attorney, PAO referred the letter to the Department of Justice (DOJ) for
proper disposition. 18
Thereafter, the allegations in Magabo's Letter and Affidavit became
subject of a formal administrative complaint filed on September 28, 2005
against Atty. Rivera for Grave Misconduct and violation of Civil Service Rules
and Regulations (DOJ Proceeding). 19
After two (2) hearing dates, Magabo submitted an Affidavit of
Desistance stating that she is no longer interested in pursuing the case, as it
merely resulted from a misunderstanding between her and her siblings. 20 IDaEHC

Nevertheless, on March 27, 2007, the DOJ issued a Resolution 21 (DOJ

Resolution) finding Atty. Rivera liable for conduct prejudicial to the best
interest of the service, a lesser offense treated under Section 22 (t) of Rule
XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292.
She was meted with the penalty of suspension for a period of six (6) months
and one (1) day without pay. 22
Falsification
On December 4, 2006 (during the pendency of the DOJ Proceeding),
Atty. Rivera submitted a Certificate of Service anent her attendance for
November 2006, which states in part:
 I, TERENCIA S. ERNI-RIVERA, do hereby certify that I reported
for work and performed my duties and functions as Regional Public
Attorney for PAO, Region IV-B, for the month of November 2006 .
23 (Emphasis supplied)

District Public Attorney Emilio G. Aclan (DPA Aclan) submitted a

subsequent Certification dated December 19, 2006 which states:
This is to certify that ATTY. TERENCIA E. RIVERA, Regional
Director, Region IV-B (MIMAROPA), reported for work in this Office
from November 13, 2006 up to November 24, 2006 . x x x 24
(Emphasis in the original; underscoring omitted.)
Thereafter, Deputy Chief Public Attorney Silvestre Mosing issued a
Memorandum dated December 22, 2006 requiring Atty. Rivera to explain
why she should not be held administratively and criminally liable for the
"discrepancies" between her Certificate of Service and the Certification
issued by DPA Aclan. 25
On December 27, 2006, Atty. Rivera submitted her
Comment/Explanation which states, in part: DTCSHA

With due respect, there is no irregularity in [my Certificate of

Service], as shown hereunder:

November 1, 2006 All Saints Day

November 2 & 3, On leave

2006

November 4 & 5, Saturday & Sunday

2006

November 6-10, 2006 PAO-convention, Manila

Hotel

November 13-24, PAO-District Office,

2006 Batangas City

November 25 & 26, Saturday & Sunday

2006

November 27-30, On leave

2006

I do not see any need to attach a Certificate of Appearance or

approved Travel Order when I am on leave. 26
After consideration, the PAO Legal Research Division issued its Report
and Recommendation dated January 5, 2007 recommending that Atty.
Rivera be held administratively liable for violation of: (i) Civil Service (CSC)
Omnibus Rules on Leave; (ii) PAO Memorandum Circular No. 18, series of
2002 on reasonable office rules and regulations; (iii) Falsification of Official
Documents treated under Section 52 (A) (6), Rule IV of the Uniform Rules on
Administrative Cases in the Civil Service (URACCS); and (iv) Dishonesty
treated under Section 52 (A) (1) of the URACCS. 27 The Report and
Recommendation was forwarded to the Presidential Anti-Graft Commission
(PAGC) for action, Atty. Rivera being a presidential appointee. 28
Acting on the Report and Recommendation, Executive Secretary
Eduardo Ermita issued an Order dated June 12, 2007, placing Atty. Rivera
under preventive suspension for a period not exceeding ninety (90) days. 29
Report of the PAO Designated
Resident Ombudsman
Later, on August 31, 2007, Atty. Melita S. Recto (Atty. Recto), the PAO
Designated Resident Ombudsman, issued a Report 30 recommending that
Atty. Rivera be held administratively and criminally liable for the above-
detailed acts committed during her incumbency as Public Attorney. In
essence, the Report lent credence to the findings of the DOJ and PAO Legal
Research Division. The penultimate portion of the Report states:
RECOMMENDATION
x x x In view of the above-stated disquisitions, the undersigned most
respectfully recommends that [Atty. Rivera] be criminally charged
for:
a. Â Violation of [Section] 7 (D) of [RA 6713]
b. Â Falsification of Official Document
Atty. Rivera should likewise be administratively charged for:
c. Â Four (4) counts of Neglect of Duty [as] defined under
Section 52 A (2), Rule IV of the [URACCS] in relation to
Section 5 (B) of [RA 6713].
[d.] Â Simple Misconduct under Section 52 (B) (4) Rule IV of
the [URACCS] in relation to violation of PAO Memorandum
Circular No. 18, Series of 2002. 31
On the basis of the findings in said Report, Atty. Recto (as PAO
Designated Resident Ombudsman), together with the National Bureau of
Investigation (NBI), filed the Criminal Complaints against Atty. Rivera. CScTED

On September 1, 2010, the Ombudsman issued the Assailed Resolution

dismissing the Criminal Complaints, thus:
PREMISES CONSIDERED, the separate complaints for alleged
violation of Section 7, paragraph (b), subparagraph (2), and
paragraph (d) of [RA 6713]; Section 3, paragraph (e), of [RA 3019], as
amended; and Article 171, paragraph (4) of [the RPC], as amended;
filed by [Atty. Recto] and the [NBI] against respondent [Atty. Rivera]
are hereby DISMISSED for lack of probable cause.
SO ORDERED. 32

PAO filed a Motion for Reconsideration 33 and subsequent

Supplemental Motion for Reconsideration 34 dated September 24, 2010 and
October 26, 2010, respectively. Both motions were denied by the
Ombudsman for lack of merit in the Assailed Order dated November 30,
2010. 35
PAO received a copy of the Assailed Order on June 1, 2011. 36 Hence,
PAO filed the present Petition on July 29, 2011.
The Issue
The sole issue for this Court's resolution is whether the Ombudsman
acted in grave abuse of discretion when it directed the dismissal of the
Criminal Complaints against Atty. Rivera for lack of probable cause.
The Court's Ruling
Time and again, this Court has consistently stressed that a petition for
certiorari is a special civil action that may be resorted to only for the limited
purpose of correcting errors of jurisdiction, and not errors of judgment. 37 In
turn, errors of jurisdiction proceed from grave abuse of discretion, or such
capricious and whimsical exercise of judgment tantamount to lack of
jurisdiction. 38 In this Petition, such grave abuse discretion is imputed to the
Ombudsman.
Under the 1987 Constitution, the Ombudsman is mandated to
investigate acts or omissions of public officials or employees which appear
to be illegal, unjust, improper, or inefficient. 39 Accordingly, the Ombudsman
is vested with investigatory and prosecutorial powers to fulfill its
constitutional mandate. 40 The Ombudsman's powers are plenary in nature,
designed to insulate it from outside pressure and influence. 41
Nevertheless, the plenary nature of the Ombudsman's powers does not
place it beyond the scope of the Court's power of review. Under its
expanded jurisdiction, the Court may strike down the act of any branch or
instrumentality of the government, including the Ombudsman, on the
ground of grave abuse of discretion. 42 However, for the extraordinary writ of
certiorari to issue against the actions of the Ombudsman, the petitioner
must show that the latter's exercise of power had been done in an arbitrary
or despotic manner. Such abuse of power must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law. 43cDCEIA

The allegations in the Petition failed to show that the Assailed

Resolution and Order had been issued in the foregoing manner. Accordingly,
the Court resolves to deny the instant Petition on this ground.
The Assailed Resolution and Order
were issued within the bounds of the
Ombudsman's investigatory and
prosecutorial powers.
PAO asserts that the Ombudsman "overzealously exceeded its
mandate by requiring more than the quantum of evidence needed to support
a finding of probable cause." PAO claims that the Ombudsman effectively
demanded it to present evidence sufficient to establish Atty. Rivera's guilt
for the offenses charged, instead of merely requiring such evidence
necessary to sustain a finding of probable cause to file a criminal information
against her. 44
These assertions lack basis.
 Probable cause, for the purpose of filing a criminal information, has
been defined to constitute such facts as are sufficient to engender a well-
founded belief that a crime has been committed and that respondent is
probably guilty thereof, 45 thus:
x x x [Probable cause] does not mean "actual or positive cause"
nor does it import absolute certainty. It is merely based on opinion
and reasonable belief. Probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained
of constitutes the offense charged.
x x x In determining probable cause, the average man weighs
facts and circumstances without resorting to the calibrations of the
rules of evidence of which he has no technical knowledge. He relies
on common sense. What is determined is whether there is sufficient
ground to engender a well-founded belief that a crime has been
committed, and that the accused is probably guilty thereof and
should be held for trial. x x x 46 (Emphasis in the original omitted;
emphasis and underscoring supplied.)
Indeed, the determination of probable cause does not require an
inquiry as to whether there is sufficient evidence to secure a conviction. 47
However, there is nothing in the Assailed Resolution and Order which
suggests that the Ombudsman dismissed the Criminal Complaints due to
PAO's failure to offer such higher quantum of evidence. The Court quotes the
relevant portions of the Assailed Resolution, thus: DHESca

After a careful evaluation of the different pleadings of the

parties herein, together with the various pieces of documentary
evidence attached thereto, [the Ombudsman] finds that there is no
sufficient ground to engender a well-founded belief that the
charged offenses have been committed and that public
respondent is probably guilty thereof, and should be held for
trial. This is so for the evidence on record failed to establish
that Atty. Rivera indeed solicited, took, or accepted money
from [Magabo] in the course of her official duties as Chief of
the Legal Research Division of the [PAO], or in connection with any
operation being regulated by, or any transaction which may be
affected by the functions of her office. x x x [I]nasmuch as the
purported receipt of [the money] had no connection whatsoever to
the official duties of Atty. Rivera at the [PAO] x x x no case for the
supposed violation of [Section 7(d)] of [RA 6713] and [Section 3(e)] of
[RA 3019] x x x could be maintained against her. x x x
Similarly, it cannot be maintained that [Atty. Rivera]
transgressed the provisions of [Section 7(b)(2)] of [RA 6713],
considering that no satisfactory proof was even adduced to the
effect that Atty. Rivera has been habitually or customarily
holding herself to the public as a lawyer. Furthermore, the
Affidavit of Desistance executed by [Magabo] x x x
expressing x x x that [her administrative complaint] was
merely the result of a miscommunication between her and her
siblings Edna Villoria and [Fayloga] likewise made the finding of
probable cause vis-Ã -vis (sic ) [Atty. Rivera] for the abovementioned
 offenses difficult, considering that the [Criminal Complaints] against
the latter for the supposed violation of [RA 3019], as amended, and
[RA] 6713, are evidently based on the administrative suit previously
filed by [Magabo] x x x.
Finally, the [Ombudsman] also finds no sufficient evidence
to indict [Atty. Rivera] for the supposed violation of [Article
171(4)] of [the RPC], as amended, since the latter never
stated in her Certification x x x that she rendered full time
service for the month of November 2006. x x x 48 (Emphasis and
underscoring supplied.)
Contrary to PAO's assertions, the Ombudsman did not impose a higher
quantum of proof. The dismissal of the Criminal Complaints was not
prompted by PAO's failure to present evidence to establish Atty. Rivera's
criminal liability beyond reasonable doubt, but rather, on its failure to
establish, by substantial evidence, that Atty. Rivera committed the acts
subject of the Criminal Complaints. Evidently, probable cause cannot
exist where the acts which constitute the offenses charged are not
proven to have been committed by the respondent.
The Ombudsman did not act in grave
abuse of its discretion when it found
no probable cause to charge Atty.
Rivera with violation of RA 6713 and
RA 3019. The Court's ruling in
Ramos v. Imbang does not apply.
Anent the charge of violation of Section 7 (b) (2) and (d) of RA 6713
and Section 3 (e) of RA 3019, PAO maintains that the Court's ruling in Ramos
v. Imbang 49 (Imbang) precludes the dismissal of the Criminal Complaints, as
the factual antecedents therein are similar to this case. 50
Again, this is error.
In Imbang, the Court found respondent therein (a PAO lawyer) guilty of
violating the lawyer's oath, as well as Canons 1 and 18 of the Code of
Professional Responsibility for engaging in private practice and receiving the
amount of Five Thousand Pesos (P5,000.00) in attorney's and appearance
fees. In said case, respondent led the private complainant to believe that he
had been attending hearings in connection with the case respondent filed on
the latter's behalf, only to discover later on that no such case had been filed.
51 Thus, the respondent was disbarred from the practice of law.

Thus, in Imbang, the evidence on record established that respondent

received appearance fees for attending hearings that never took place.
Hence, the acts which constitute the administrative offenses charged therein
were proven to have been committed by the respondent. As stated at the
outset, such is not the case here.
As correctly observed by the Ombudsman, the Criminal Complaints rest
heavily on the findings of the DOJ and PAO Legal Division. These findings,
are, in turn, based on Magabo's allegations which, as she admitted in her
Affidavit of Desistance, 52 merely arose from a family misunderstanding. In
fact, in the same affidavit, Magabo acknowledged that the entire amount she
had entrusted to Atty. Rivera had already been returned. TEHIaD

The Ombudsman did not act in grave

abuse of its discretion when it found
no probable cause to charge Atty.
Rivera with Falsification under the
RPC.
Anent the charge of Falsification under the RPC, PAO insists, as it did
before the Ombudsman, that Atty. Rivera untruthfully declared that she
reported for work for the entire month of November 2006, contrary to DPA
Aclan's findings that she only reported for work on November 13 to 24 of the
same year.
A careful reading of the certifications in question belies PAO's
allegation. Notably, Atty. Rivera's Certificate of Service states that "[she]
reported for work and performed [her] duties as Regional Public Attorney x x
x for the month of November 2006." 53 On the other hand, DPA Aclan's
Certification states that Atty. Rivera " reported for work in [the PAO
Region IV-B office] from November 13, 2006 up to November 24,
2006. " 54 Hence, while Atty. Rivera's Certificate of Service attests to the
performance of her duties as Regional Public Attorney for the entire
month of November, DPA Aclan's Certification merely certifies the dates
when Atty. Rivera physically reported to the PAO Region IV-B office to
perform said duties.
In fact, in her Comment/Explanation, Atty. Rivera was able to account
for all the other days in November on which she allegedly did not report to
work. Such days were either holidays, weekends, filed leave days, or days
set aside for official business. 55 The supposed discrepancies between said
certificates are thus more apparent than real.
Proceeding from the foregoing, PAO's imputation of grave abuse of
discretion on the part of the Ombudsman fails. Consequently, the findings in
the Assailed Resolution and Order must be respected, in accordance with the
Court's pronouncement in Presidential Commission on Good Government v.
Desierto: 56
Case law has it that the determination of probable cause
against those in public office during a preliminary investigation is a
function that belongs to the Office of the Ombudsman. The
Ombudsman has the discretion to determine whether a criminal case,
given its attendant facts and circumstances, should be filed or not. It
is basically his call. He may dismiss the complaint forthwith should he
find it to be insufficient in form or substance, or he may proceed with
the investigation if, in his view, the complaint is in due and proper
form and substance. We have consistently refrained from interfering
with the constitutionally mandated investigatory and prosecutorial
powers of the Ombudsman. Thus, if the Ombudsman, using
professional judgment, finds the case dismissible, the Court
shall respect such findings, unless the exercise of such
discretionary powers is tainted by grave abuse of discretion.
 57 (Emphasis supplied) DETACa

WHEREFORE, premises considered, the Petition for Certiorari is

DISMISSED. The Assailed Resolution dated September 1, 2010 and Order
dated November 30, 2010 issued by the Ombudsman in OMB: C-C-08-0419-I
are hereby AFFIRMED.
SO ORDERED.
Carpio, Peralta and Perlas-Bernabe, JJ., concur.
Reyes, Jr., * J., is on leave.
Â
Footnotes

* Â On leave.

1. Â Rollo , pp. 2-36.

2. Â Id. at 37-50.

3. Â Id. at 80-90.

4. Â RA 6713, Sec. 7 (b) (2) and (d) provides:

SEC. 7. Prohibited Acts and Transactions. — In addition to acts and omissions

of public officials and employees now prescribed in the Constitution and
existing laws, the following shall constitute prohibited acts and transactions
of any public official and employee and are hereby declared to be unlawful:

xxx xxx xxx

(b) Outside employment and other activities related thereto. — Public

officials and employees during their incumbency shall not:

xxx xxx xxx

(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided that such practice will not conflict or tend to
conflict with their official functions[.]

xxx xxx xxx

(d) Solicitation or acceptance of gifts. — Public officials and employees shall

not solicit or accept, directly or indirectly, any gift, gratuity, favor,
entertainment, loan or anything of monetary value from any person in the
course of their official duties or in connection with any operation being
regulated by, or any transaction which may be affected by the functions of
their office.

5. Â CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND

EMPLOYEES.

6. Â RA 3019, Sec. 3 (e) provides:

SEC. 3. Corrupt practices of public officers. — In addition to acts or omissions

 of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to
be unlawful:

xxx xxx xxx

(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.

7. Â ANTI-GRAFT AND CORRUPT PRACTICES ACT.

8. Â RPC, ART. 171 (4) provides:

ART. 171. Falsification by public officer, employee or notary or ecclesiastic

minister. — The penalty of prision mayor and a fine not to exceed 5,000
pesos shall be imposed upon any public officer, employee, or notary who,
taking advantage of his official position, shall falsify a document by
committing any of the following acts:

xxx xxx xxx

4. Making untruthful statements in a narration of facts[.]

9. Â Rollo , p. 121.

10. Â Id.

11. Â Id. at 40, 95.

12. Â Id. at 38, 95 and 109.

13. Â Id. at 43.

14. Â See id. at 95.

15. Â Id.

16. Â See id . at 110.

17. Â Id.

18. Â Id. at 95.

19. Â Id. at 96.

20. Â Id. at 111.

21. Â Id. at 109-115.

22. Â Id. at 114-115.

23. Â Id. at 98.

24. Â Id. at 97.

25. Â Id. at 98.

26. Â Id.

27. Â Id. at 99-100.

28. Â Id. at 100.

29. Â Id.

30. Â Id. at 94-105.

31. Â Id. at 103-104.

32. Â Id. at 50.

33. Â Id. at 51-60.

34. Â Id. at 61-67.

35. Â Id. at 80-90.

36. Â Id. at 3.

37. Â See Angeles v. Gutierrez, 685 Phil. 183, 193 (2012).

38. Â Presidential Commission on Good Government v. Desierto, 563 Phil. 517,

526 (2007).

39. Â 1987 CONSTITUTION, Art. XI, Sec. 13 (1).

40. Â See Soriano v. Marcelo , 597 Phil. 308, 316 (2009).

41. Â See Angeles v. Gutierrez, supra note 37, at 195.

42. Â 1987 CONSTITUTION, Art. VIII, Sec. 1 (2).

43. Â Philippine Deposit Insurance Corp. v. Casimiro, 768 Phil. 429, 436 (2015).

44. Â See rollo, p. 19.

45. Â Philippine Deposit Insurance Corp. v. Casimiro, supra note 43, at 437.

46. Â Id.

47. Â Id.

48. Â Rollo , pp. 46-49.

49. Â 557 Phil. 507 (2007).

50. Â Rollo , pp. 25-26.

51. Â Supra note 49, at 510, 517.

52. Â Rollo, pp. 226-227.

53. Â Id. at 98.

54. Â Id. at 97.

55. Â See id. at 98-99.

56. Â Supra note 38.

57. Â Id. at 525-526.